An Employment Tribunal has dismissed an employee's claims of direct discrimination, unfair dismissal and wrongful dismissal against his former employer, in relation to his gender critical beliefs.
The Claimant's gender critical views satisfied the so called Grainger criteria, and were therefore protected under the Equality Act 2010as a philosophical belief. The Claimant believed that sex is biologically immutable and binary.
The Claimant's employer, East Riding of Yorkshire Council, introduced a new policy which invited staff to add pronouns to their email signature. The policy itself did not stipulate a list of prescribed acceptable pronouns, and stated that individuals could also choose not to add any pronouns if that was their preference.
The Claimant objected to the Council's policy on the basis that it promoted a political ideology of self-identification with which he disagreed and therefore by way of protest he decided to add the words "XYchromosomeGuy/AdultHumanMale" to his email signature.
The Council requested that the Claimant remove this wording from his email signature, on numerous occasions, which he refused to do. Eventually he was dismissed for having refused numerous reasonable management instructions to remove the words.
In deciding his claims, the Tribunal found that the manifestation of the Claimant's beliefs was not protected under the ECHR, under the test in Higgs v Farmor's School [2023] EAT 89 as there was not a sufficiently close causal nexus between the email signature and the Claimant's gender critical beliefs.
What is more, the email signature was considered to be a deliberately provocative act to mock the idea of gender self-identification, rather than an expression of the Claimant's gender identity. It held therefore that the Council's actions to dismiss him were in response to an inappropriate manifestation of his beliefs, rather than because of the fact that he held gender critical beliefs. As such the Tribunal was able to conclude that the Council's decision to dismiss the Claimant was not direct discrimination.
The Tribunal needed to consider as part of this, the proportionality of the Council's response. In doing so it noted that the Claimant had a public-facing role and was using the Council's resources and platform to be deliberately provocative. The risk of reputational damage and impact on potential service users was therefore much higher than in cases where an employee simply expresses views on social media for example. The email signature openly contradicted the Council's attempts at being inclusive in accordance with its public sector equality duty and as such its overall response to dismiss was proportionate. This was notwithstanding that the email policy itself had been "poorly thought through and badly executed".
The case law has evolved rapidly in this area and principles are being established. In general terms, the Higgs v Farmor case set out that it is only lawful for an employer to dismiss an employee for the manifestation of their gender critical beliefs, where the action is not taken because of, or relating to, the exercise of the rights in question but is by reason of the objectionable manner of the manifestation or expression.
In assessing whether the manifestation is objectionable the following factors need to be taken into account:-
- the content of the manifestation;
- the tone used;
- the extent of the manifestation;
- the worker's understanding of the likely audience;
- the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer's ability to run its business;
- whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;
- whether there is a potential power imbalance given the nature of the worker's position or role and that of those whose rights are intruded upon;
- the nature of the employer's business, in particular where there is a potential impact on vulnerable service users or clients; and
- whether the limitation imposed is the least intrusive measure open to the employer.
These "basic principles" provide a helpful, and fairly detailed, framework for employers, employees and Tribunals alike to follow when dealing with cases involving an assessment of the proportionality of an interference with the right of a Claimant to manifest their beliefs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.